Peasley v. Spearman, et al
Filing
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ORDER by Judge Lucy H. Koh granting in part and denying in part 238 Motion for Summary Judgment; granting 239 Motion for Leave to File Second Summary Judgment Motion; granting 242 Administrative Motion For Leave to File Late Opposition to Motion for Leave. (lhklc4, COURT STAFF) (Filed on 9/18/2018)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
United States District Court
Northern District of California
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DAVID SCOTT PEASLEY,
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Case No. 15-CV-01769-LHK
Plaintiff,
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ORDER GRANTING DEFENDANT
AHMED’S MOTION FOR LEAVE TO
FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING
PLAINTIFF’S MOTION FOR LEAVE
TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR
LEAVE; GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT; DENYING
DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
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Re: Dkt. Nos. 238, 239, 242
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v.
M. WARDEN SPEARMAN, et al.,
Defendants.
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Plaintiff David Scott Peasley (“plaintiff”), a California prisoner, has filed an amended civil
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rights complaint pursuant to 42 U.S.C. § 1983. In the amended complaint, plaintiff alleges that
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defendants—all of whom were medical and correctional personnel at plaintiff’s former prison, the
Correctional Training Facility (“CTF”)—were deliberately indifferent to his serious medical needs
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Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
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by failing to adequately treat his Type 1 diabetes. All defendants except for Dr. Ahmed have filed
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a motion for judgment on the pleadings and for summary judgment. Defendant Dr. Ahmed has
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filed a motion for leave to file a second motion for summary judgment, while plaintiff has filed a
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motion for leave to file a late opposition to Dr. Ahmed’s motion for leave. The Court held a
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hearing on the motions on September 18, 2018.
Having considered the parties’ briefing, arguments at the hearing, the relevant law, and the
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record in this case, the Court GRANTS Dr. Ahmed’s motion for leave to file a second motion for
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summary judgment, GRANTS plaintiff’s request for leave to file a late opposition to Dr. Ahmed’s
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motion for leave, GRANTS IN PART AND DENIES IN PART defendants’ motion for summary
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judgment, and DENIES defendants’ motion for judgment on the pleadings. Count 4 against Dr.
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United States District Court
Northern District of California
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Ahmed and Count 8 against Officer Lopez survive defendants’ motion for summary judgment.
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I.
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BACKGROUND
A. Factual Background
The following facts are taken in the light most favorable to plaintiff unless otherwise
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indicated. Plaintiff was incarcerated at CTF between April 2013 and December 2015. Plaintiff
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suffers from Type 1 diabetes, which means that plaintiff’s body cannot produce insulin. Like all
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people with Type 1 diabetes, plaintiff needs two types of external insulin: one as a base to support
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the insulin levels between meals, and the other – rapid-acting insulin – to offset the foods that he
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eats. ECF No. 241-47 ¶¶ 23-24. Plaintiff is a brittle diabetic, which means that his blood sugar
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levels are labile and experience significant swings. ECF No. 241-47 ¶ 28.
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Defendants are Dr. Ahmed, plaintiff’s primary care physician at CTF, ECF No. 238-1 ¶ 2;
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Dr. Bright, the former chief physician at CTF, ECF No. 238-4 ¶ 2; Ellis, the Chief Executive
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Officer for Health Services at CTF, ECF No. 238-6 ¶ 1; Warden Spearman, warden of CTF at the
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time of plaintiff’s incarceration there, ECF No. 238-20 ¶ 1; and CTF correctional officers Gibson,
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Lopez, and Orozco. ECF No. 238-11 ¶ 2.
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2
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
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Plaintiff’s lawsuit concerns his medical treatment at CTF between May 2013 and April
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2015. In May 2013, Dr. Ahmed temporarily changed plaintiff’s insulin regimen. ECF No. 238-1
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¶ 7. Specifically, Dr. Ahmed discontinued plaintiff’s standing pre-meal doses of Humulin R, a
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fast-acting insulin (“Regular insulin”). Id. Instead, plaintiff received Regular insulin before meals
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on a sliding scale, with the dosage dependent on plaintiff’s blood sugar level at the time. Id. In
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conjunction, Dr. Ahmed increased plaintiff’s dosage of long-acting Lantus insulin. Id. at ¶ 8; see
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also ECF No. 241-47 ¶¶ 42-47 (charts tracking changes in plaintiff’s insulin regimen). Dr. Ahmed
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testified that because plaintiff’s diabetes had been “extremely labile,” he made the temporary
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change to “examine the patterns of [plaintiff’s] blood-sugar levels without the standing pre-meal
insulin for a relatively short time.” ECF No. 238-1 ¶ 8. Plaintiff had experienced “repeated
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United States District Court
Northern District of California
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episodes of hypoglycemia” prior to the change in regimen. Id. Dr. Ahmed also suggested that he
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made the change because plaintiff failed to comply with many of the medical staff’s dietary
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recommendations and other diabetes management efforts. Id. at ¶ 9.
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Hypoglycemia (low blood sugar) and hyperglycemia (high blood sugar) are the primary
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complications of diabetes. ECF No. 241-47 ¶ 29. Hypoglycemia occurs when blood sugar levels
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fall below 70 mg/dL. ECF No. 238-7 ¶ 8. Hypoglycemia may cause symptoms like “irritability,
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sweats, headaches, tremulousness, anxiety, and hunger” and, if severe, can lead to a loss of
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consciousness or even death. Id.; ECF No. 241-47 ¶ 29. Prolonged hyperglycemia, on the other
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hand, can cause “blurred vision, very frequent urination, extreme thirst and hunger, weight loss,
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fatigue, and lethargy.” ECF No. 241-47 ¶ 29. Prolonged hyperglycemia can also cause diabetic
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ketoacidosis (“ketoacidosis”), a serious medical condition. Id. at ¶ 30. In brief, ketoacidosis
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results from the overproduction of ketone bodies to compensate for the unavailability of glucose,
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and can make a person’s blood too acidic. Id.; see also ECF NO. 238-7 ¶ 20 (“Ketoacidosis is a
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metabolic state associated with high concentrations of ketone bodies.”). Symptoms of
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ketoacidosis include “fruity odor of breath, difficulty breathing, confusion, and loss of
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Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
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consciousness,” among others. Id.
In all, plaintiff received no standing pre-meal insulin for a period of twenty days from late
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May to mid-June. ECF No. 241-47 ¶ 48. However, plaintiff often received Regular insulin on a
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sliding scale as a corrective. ECF No. 238-1 ¶ 10. The prison fully restored plaintiff’s previous
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insulin regimen in early August after Dr. Ahmed was able to consult with non-party
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endocrinologist Dr. Kumar. Id. at ¶ 11. The parties dispute whether Dr. Ahmed’s change in
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plaintiff’s insulin regimen harmed plaintiff’s health. During the aforementioned 20-day period in
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May and June when plaintiff did not receive standing pre-meal insulin, plaintiff had four medical
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visits. Id. at ¶ 10. Plaintiff’s blood sugar levels were also tested multiple times each day. Id.; see
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ECF No. 241-13 (log of plaintiff’s blood sugar levels).
United States District Court
Northern District of California
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Beginning on May 26 and continuing at least through June 28, plaintiff’s blood sugar
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levels were occasionally over 300 mg/dL. See, e.g., ECF Nos. 241-13, 241-14, & 241-15. In
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general, plaintiff’s blood sugar levels varied. For example, on June 7, plaintiff’s breakfast reading
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was 133 mg/dL, his lunch reading was 350 mg/dL, and his dinner reading was 254 mg/dL. ECF
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No. 241-14. On occasion, plaintiff’s blood sugar levels exceeded 400 mg/dL, including on June
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24, June 26, and June 28. ECF No. 241-15. Dr. Ahmed testified that if an inmate’s blood sugar
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level exceeded 400 mg/dL, the prison’s protocol was to conduct a urine test for ketone bodies in
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order to determine if the inmate had a risk of ketoacidosis. ECF No. 241-21, 20:25-21:2-5.
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However, neither Dr. Ahmed nor any other prison medical staff member ever conducted a urine
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ketone test on plaintiff. Dr. Ahmed testified that “there was no reason to even test for ketoacidosis
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because [plaintiff’s] vital signs and heart rate were regularly taken while at CTF and were within
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the normal ranges.” ECF No. 241-1 ¶ 13.
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Plaintiff tells a different story. For example, plaintiff testified that shortly after the
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regimen change in May 2013, he went two days without eating because the amount of insulin he
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was receiving “d[id] not cover food.” ECF No. 241-18, 12:4-15. Moreover, plaintiff attested in
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Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
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an interrogatory response that he suffered symptoms including “extreme hunger, excessive thirst,
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nausea, vomiting, dizziness, fatigue, weakness, lethargy, abdominal pain, loss of consciousness,
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swollen extremities, loss of vision, fear, mental and emotional anguish.” ECF No. 241-16 at 5:6-
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9. The notes from plaintiff’s medical visits during that time do not indicate that medical staff
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noticed such symptoms. For example, the notes of a June 6 visit indicate that plaintiff had no
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hypoglycemic episodes, no dizziness, and no blurred vision. ECF No. 238-3, MED-AGO 1066.
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Plaintiff filed numerous Health Care Service Request Forms (“Form 7362”) to complain
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about the regimen change. On May 22, 2013, plaintiff complained in a Form 7362 request that
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“Dr. Ahmed’s orders have been altered and are not what we had decided.” ECF No. 241-2.
Plaintiff asserted that “proactive insulin is required for a Type One diabetic.” Id. On May 24, in a
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United States District Court
Northern District of California
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second Form 7362, plaintiff complained, “insulin not allowed and blood test is denied, not
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following dr. orders.” ECF No. 241-4. That same day, in another Form 7362, plaintiff asserted
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that Dr. Ahmed’s failure to supply a carbohydrate list for meals and the refusal of a blood test was
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“resulting in cruel and unusual punishment.” ECF No. 241-3. Plaintiff further asserted that the
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standing use of only long-acting Lantus “harm[ed] and endanger[ed]” him. Id.
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By regulation, the California Department of Corrections and Rehabilitation (“CDCR”)
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provides its inmates and parolees the right to appeal administratively “any policy, decision, action,
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condition or omission by the department or its staff that the inmate or parolee can demonstrate as
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having a material adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit.
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15, § 3084.1(a). In order to exhaust available administrative remedies, a prisoner must submit his
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complaint on CDCR Form 602 (“Form 602”) and proceed through several levels of appeal: (1)
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informal level grievance filed directly with any staff member, (2) first formal level appeal filed
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within one of the institution’s appeal coordinators, (3) second formal level appeal filed with the
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institution head or designee, and (4) third formal level appeal filed with the CDCR director or
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designee (“Director’s level”). Id. at § 3084.5. In this case, California Correctional Health Care
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Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
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Services (“CCHCS”) decided plaintiff’s Director’s level appeals. See, e.g., ECF No. 198, AGO
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125.
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On June 3, 2013, plaintiff contested the regimen change in the first formal level appeal
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CTF-HC-13039056, and requested emergency processing. ECF No. 198, AGO 027. Plaintiff
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wrote that Dr. Ahmed was refusing to provide “fast acting insulin for meals, refused blood tests . .
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. and restricted food by no insulin.” Id. The CCHCS Appeals Office (“Appeals Office”) rejected
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plaintiff’s request for emergency processing. ECF No. 241-23 at 1. On three subsequent
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occasions, the Appeals Office notified plaintiff that its response to the appeal would be delayed
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due to the “[c]omplexity of the decision action or policy, requiring additional research.” Id. at 3–
5. In October 2013, plaintiff asked in a letter to the Appeals Office whether the Director’s level
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United States District Court
Northern District of California
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would review the appeal “or shall I move directly to court?” Id. at 2. On November 14, 2013,
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plaintiff received CTF’s first formal level appeal response. ECF No. 198, AGO 029–30.
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Although Dr. Ahmed granted other requests in the appeal, he denied plaintiff’s request for fact-
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acting insulin on the basis that plaintiff’s dosage “is based on blood sugar level and or patient’s
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presenting symptoms.” Id. at AGO 029. Plaintiff did not further pursue the appeal. Opp. at 11.
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On June 26, 2013, plaintiff filed appeal CTF-HC-13039189, in which he complained that
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the regimen change was “forc[ing] harm by high blood sugar levels and illness,” listed his noon
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blood sugar readings, and requested a noon blood test. ECF No. 198 at AGO 102–04. The prison
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granted plaintiff a noon blood test. Id. at AGO 106. Plaintiff continued to request a change to his
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insulin dosage, id. at AGO 105, but the appeal was denied at the second level, id. at AGO 108, and
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at the Director’s level. Id. at AGO 100. Plaintiff made similar Form 7362 requests complaining
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about his insulin dosage on May 28, June 2, June 22, and June 27. ECF Nos. 241-5, 241-6, 241-7,
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& 241-8.
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Plaintiff made other diabetes treatment requests in 2013 and 2014. For example, in April
2013, plaintiff requested an on-person glucometer in formal appeal CTF-HC-13038910. ECF No.
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Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
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198, AGO 131. A glucometer “is a medical device for determining the approximate concentration
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of glucose in the blood”—in essence, a self-testing device. ECF No. 238-1 ¶ 14. CTF medical
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denied the request because CTF “does not provide individual blood tester[s] for diabetes” and
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inmates with diabetes “get their shots in the pill line window as nurse administered.” ECF No.
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198, AGO 132. Plaintiff was instructed to discuss any further concerns with Dr. Ahmed. Id. In
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May 2014, CCHCS denied the appeal at the Director’s level because Dr. Ahmed “noted a
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glucometer was not medically indicated.” Id. at AGO 124. Later, in January 2014, Dr. Kumar
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wrote in a note, “Please see if pt can get his own glucometer.” ECF No. 241-28.
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In February 2014, plaintiff filed appeal CTF-HC-14040223. ECF No. 198, AGO 062.
Plaintiff requested “rapid dose” insulin. Id. at 064. In CTF’s first level response, Dr. Bright
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United States District Court
Northern District of California
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granted the request because plaintiff was currently receiving “short acting insulin.” Id. at AGO
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069. In a Director’s level rejection, CCHCS explained that in August CTF had denied a request
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for the non-formulary drug Humalog. Id. at AGO 059. Humalog is an ultra-fast-acting insulin
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that takes effect about 15 minutes after injection. ECF No. 238-7 ¶ 22. By contrast, Regular
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insulin—a version of which is Humulin R— is a fast-acting insulin that takes effect about 30
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minutes after injection. Id. In July 2014, Dr. Kumar recommended that plaintiff switch to
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Humalog, and Dr. Ahmed thus completed a request for Humalog. ECF No. 198, AGO 049.
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However, Humalog was a non-formulary medication not on CCHCS’s pre-approved list, and its
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dispensation required Dr. Bright’s approval. Id. Dr. Bright rejected the request on the basis that
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“humalog does not provide better control than humulin R [and] is more difficult to manage in
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prison.” Id. Plaintiff grieved that decision in formal appeal CTF-HC-14040937. Id. at AGO 045.
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Dr. Bright denied plaintiff’s second-level appeal because “[t]here is no medical evidence that
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Humalog is superior to Humulin R.” Id. at AGO 049. Then, CCHCS cancelled the appeal at the
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Director’s level because it was duplicative of appeal CTF-HC-14040223. Id. at AGO 058.
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Plaintiff also pursued appeals related to the correctional officers’ conduct. On July 17,
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Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
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2013, plaintiff asserted in a CDCR Form 22 Request for Interview, Item or Service (“Form 22”)
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that on July 14, Officer Orozco had “disallowed” plaintiff from having his dinner at the scheduled
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time. ECF No. 31-1 at 8. According to Officer Orozco’s declaration in support of summary
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judgment, on that day, patients in plaintiff’s dorm were receiving medication at their cells. ECF
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No. 238-11 ¶ 4. Plaintiff “began moving throughout the facility” while Officer Orozco was
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distributing medication and refused Officer Orozco’s order to stay in the dayroom. Id. at ¶¶ 5-6.
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As a result, Officer Orozco locked plaintiff in his cell, but forgot to release plaintiff in time for his
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dinner. Id. at ¶¶ 6-7. Once Officer Orozco realized his mistake, he ordered a diabetic snack for
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plaintiff. Id. at ¶ 7. Plaintiff also later received a full meal. Id. ¶ 8. In a previous declaration,
Orozco attested that plaintiff received a meal in his cell after the diabetic snack. ECF No. 197-3
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Northern District of California
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¶7. However, in his declaration attached to the instant motion, Orozco attests that he released
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plaintiff to eat in the dining hall. ECF No. 238-11 at ¶ 8.
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In a declaration, Plaintiff disputes whether he failed to comply with Officer Orozco’s
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order. ECF No. 241-34 at 5. Plaintiff also testified in a deposition that he was not released from
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his cell until 6:00 a.m. the next morning and that he did not receive a meal. ECF No. 241-18 at
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54:22-55:15. Plaintiff testified that as a result of missing dinner, he “became weak, shaky,
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sweating.” Id. at 56:14.
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On August 6, in appeal CTF-S-13-01361, plaintiff requested an explanation for the meal
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denial. ECF No. 76-2 at 10. The prison provided the above explanation from Officer Orozco and,
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in response to plaintiff’s claim that the incident “caused an emergency situation,” noted that “there
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is no documentation of a gurney or any medical issues for [plaintiff]” on that date. Id. at 16.
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On September 7, 2013, plaintiff asked defendants Officer Gibson and Officer Orozco to
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release him from his cell for a glucose test because he was worried that his blood sugar level was
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too high. ECF No. 238-16 at 58:5–60:22-25. According to Officer Gibson’s report on the
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interaction, she called CTF medical and spoke to a licensed vocational nurse, who said that the
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Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
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“pill line”—where patients received their daily blood tests—could not perform a test without an
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order. ECF No. 241-32; see also ECF No. 238-16 at 61:2–3 (plaintiff’s deposition testimony
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confirming same). Officer Gibson informed plaintiff that the pill line nurses were unable to
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provide a blood test. ECF No. 241-32. Then, according to plaintiff, “it became funny to Officer
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Orozco to tell me the LVN wouldn’t help as he ignored my question all together.” Id.
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On September 9, 2013, according to plaintiff, he awoke “feeling sick, nausea, sluggish, and
drained.” ECF No. 241-30. Plaintiff informed Officer Lopez that he had an urgent need to see
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medical because his morning and noon blood tests indicated high blood sugar levels. Id.
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However, Officer Lopez made a phone call and told plaintiff that plaintiff could not get a pass to
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see medical because he did not have an appointment. Id. Officer Lopez testified that she did not
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United States District Court
Northern District of California
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recall those events. ECF No. 241-31 at 50:12-51:17.
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On September 12, 2013, plaintiff made a Form 22 request for an explanation for the
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September 7 blood test denial. ECF No. 238-19 at 12. The prison explained that plaintiff “no
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longer ha[d] a prescription” for evening medication. Id. On September 30, 2013, in appeal CTF-
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HC-13039589, plaintiff raised the issue “access to medical clinic and RN denied by security
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officers Lopez, Orozco, Balli, Gibson when emergency declared.” Id. Plaintiff asserted in his
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appeal that on September 7, he had requested a blood test from “medical,” not the pill window. Id.
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at 9. The prison appeals coordinator forwarded the first level appeal to health care staff because
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an “appeal should be submitted to the appropriate CDCR unit for review.” Id. at 10. Then, the
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health care appeals coordinator rejected the appeal for pertaining to both “custody and medical
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issues” and instructed to “[s]eparate your issues and resubmit health care issues.” Id. at 20. In
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January 2014, health care staff rejected the appeal because it was not “a health care services
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issue.” Id. at 3. The rejection informed plaintiff that if he wished to complain against the custody
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officers, he should submit Form 602 to the Inmate Appeals Office. Id.
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Next, according to plaintiff, on September 16, 2013, Officer Lopez caused plaintiff to miss
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Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
a meal after plaintiff’s counseling appointment ran longer than expected. ECF No. 241-37 at 2.
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Officer Lopez said that plaintiff could not enter Lassen Hall until the next release time, which was
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over two hours later. Id. When plaintiff protested that he needed food, Officer Lopez examined
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plaintiff’s pockets, found a snack, and said “that’s good enough.” Id. According to Officer
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Lopez, she permitted all inmates returning from the yard to enter Lassen Hall between 11:45 and
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noon. ECF No. 197-4 at 17. Officer Lopez further testified that she did not deny plaintiff entry.
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ECF No. 241-31 at 66:7. Plaintiff filed appeal CTF-S-01831 to complain that Officer Lopez
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refused entry. Id. at 16. The prison denied the appeal on the basis that plaintiff was permitted to
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take his lunch with him to counseling. Id. at 17.
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Next, according to plaintiff, on November 4, 2013, Officer Lopez refused to release
United States District Court
Northern District of California
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plaintiff to receive a meal following his insulin injection. ECF No. 241-9 at 6. Due to a security
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issue, plaintiff was confined to his cell after receiving insulin. Id. Plaintiff explained his need for
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food to Officer Lopez, but she “laughed and smiled.” Id. Officer Lopez testified that she did not
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recall the events, and that the interaction “did not take place.” ECF No. 241-31 at 59:14-61:9. On
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November 6, 2013, plaintiff filed an appeal stating that Officer Lopez “denied a type one diabetic
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to eat dinner (after his shot) at 1600 hours.” ECF No. 241-36 at 2. Plaintiff also noted that the
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issue was a “repeat.” Id. at 4. The appeal was screened out as duplicative of CTF-S-01361,
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plaintiff’s earlier appeal. Id. at 2.
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Lastly, in April 2015, CTF medical denied plaintiff’s request for bedtime regular insulin
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and for a nighttime blood sugar test. ECF No. 31-1 at 35. Dr. Kumar had recommended
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providing plaintiff bedtime Regular insulin on a sliding scale. Id. As a result, according to
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plaintiff, he was unable to “eat full, nutritious meals [like] other inmates.” Id. at 51. Plaintiff
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further explained that without a nighttime blood test, he lacked a “check to verify safety” for a
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span of 15 hours. ECF No. 241-41. Plaintiff submitted at least eight Form 7362 requests during
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that period. ECF No. 241-42 at 5; see, e.g., ECF No. 198, AGO 156 (Form 7362 request
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Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
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complaining that “insulin to diabetic has been stopped”).
Plaintiff filed several administrative appeals related to the April 2015 denial. In appeal
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CTF-HC-15042033, plaintiff complained that “by removal of medical care and treatment, food is
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denied” because he was “forced not to eat” to lower his blood sugar. ECF No. 241-45. In appeal
5
CTF-HC-15042008, plaintiff complained that Dr. Bright “stopped a[n] insulin treatment designed
6
by a CDCR employed endocrinologist” and asked the prison to “follow specialist orders to avoid
7
harm.” ECF No. 198, AGO 150. At the second level, CTF medical rejected the appeal because
8
“[m]edical staff is under no obligation to provide treatment as ordered by another institution or
9
outside facility or physician.” Id. at AGO 155. Instead, CTF “provide[s] only medical services
for patient-inmates that are based on medical necessity and supported by outcome data as effective
11
United States District Court
Northern District of California
10
medical care.” Id. At the Director’s level, CCHCS rejected plaintiff’s request that “the
12
specialist’s orders are followed regarding insulin administration.” Id. at AGO 148. CCHCS
13
explained that “specialist providing consultation for your care are not able to and has not issued
14
orders,” and that “[h]ealth care providers will continue to confer with you and each other to
15
provide appropriate medical care.” Id.
16
In appeal CTF-HC-15042032, filed on April 24, 2015, plaintiff asserted that Dr. Bright had
17
violated a California regulation by denying plaintiff’s request for a nighttime blood test. Id. at
18
AGO 169. Plaintiff’s request was denied at the Director’s level because “[m]edical needs and
19
assessment techniques can and do change over time, and treatment may later be adjusted or
20
changed by another provider.” Id. at AGO 167.
21
22
B. Procedural History
Plaintiff, proceeding pro se, filed his original complaint on May 22, 2015. ECF No. 13.
23
Plaintiff’s original complaint raised 15 counts. See id. After screening the original complaint, the
24
Court dismissed Counts 6–11 of the original complaint with leave to amend and Count 15 of the
25
original complaint without leave to amend on September 18, 2015. ECF No. 28.
26
27
28
11
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
Then, on October 19, 2015, Plaintiff filed his amended complaint. See ECF No. 31.
1
2
Plaintiff’s amended complaint also raised 15 Counts. See id.; ECF Nos. 31-1 & 31-2. On
3
December 14, 2015, plaintiff filed a notice which stated that plaintiff “is being relocated [from
4
CTF] by way of a prison transfer” and which provided a new address. ECF No. 41. Then, on
5
February 1, 2016, plaintiff filed a “second notice” of change of address confirming that plaintiff
6
had been transferred from CTF to a different prison. ECF No. 50.
On March 15, 2016, after screening the amended complaint, the Court dismissed Counts
7
8
10 and 15 in its order of service. ECF No. 53 at 4. On July 18, 2016, defendants moved to
9
dismiss Counts 1–9 and 11–13 based on res judicata, and Dr. Ahmed moved for summary
judgment on Counts 2 and 14. ECF No. 90. Plaintiff filed an opposition on September 6, 2016,
11
United States District Court
Northern District of California
10
ECF No. 111, and defendants filed a reply on September 20, 2016. ECF No. 114.
On May 23, 2016, plaintiff filed a motion for summary judgment on Counts 6–9. ECF No.
12
13
76. On July 19, 2016, defendants filed an opposition that essentially parroted their res judicata
14
argument on Counts 1–9 and 11–13, and summary judgment argument on Counts 2 and 14. ECF
15
No. 95.
16
On July 29, 2016, plaintiff filed a motion for summary judgment on Counts 1–5 and 11–
17
14. ECF No. 97. On August 12, 2016, defendants filed a statement that their previously filed July
18
19, 2016 opposition should serve as an opposition to plaintiff’s second motion for summary
19
judgment as well. ECF No. 103. On August 29, 2016, plaintiff filed replies to defendants’
20
opposition. ECF Nos. 108 & 109.
21
On March 6, 2017, the Court denied defendants’ motion to dismiss Counts 1–9 and 11–13
22
based on res judicata, granted Dr. Ahmed’s motion for summary judgment on Counts 2 and 14,
23
and referred the matter to settlement proceedings. ECF No. 151. The Court informed the parties
24
that if settlement proceedings were unsuccessful, the Court would then resolve plaintiff’s motions
25
for summary judgment. Id. at 19.
26
27
28
12
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
On May 11, 2017, the Court was informed that the parties were unable to settle. See ECF
2
No. 165. On June 8, 2017, plaintiff filed a notice indicating that plaintiff had been transferred
3
again, this time to Valley State Prison. ECF No. 175.
4
On September 26, 2017, the Court denied plaintiff’s motions for summary judgment on
5
Counts 1, 3–7, and 11–13. ECF No. 193 at 3. The Court declined to address Counts 8 or 9
6
because those Counts “name [Officer] Officer Lopez as the sole defendant,” and at that time,
7
Officer Lopez had not entered an appearance in the case. Id. Further, the Court ordered the
8
Federal Pro Se Program to locate counsel for plaintiff. Id. at 14. On October 4, 2017, the Court
9
appointed Joseph Farris and Michael Malecek of Arnold & Porter Kaye Scholer, LLP as counsel
for plaintiff pursuant to 28 U.S.C. § 1915(e)(1) and the Court’s Federal Pro Bono Project
11
United States District Court
Northern District of California
10
guidelines. ECF No. 195.
12
On October 9, 2017, defendants filed a motion to dismiss and for summary judgment.
13
ECF No. 197. Defendants moved to dismiss some of plaintiff’s claims on Eleventh Amendment
14
immunity grounds, moved to dismiss plaintiff’s request for injunctive relief on mootness grounds,
15
and moved for summary judgment on all Counts. See id. On November 14, 2017, the Court
16
denied defendant’s motion to dismiss on Eleventh Amendment immunity grounds, and also denied
17
defendants’ motion for summary judgment on the basis that it was a successive motion for
18
summary judgment. ECF No. 204. On January 19, 2018, the Court granted defendants’ motion to
19
dismiss plaintiff’s request for injunctive relief on mootness grounds. ECF No. 218.
20
On November 21, 2017, defendants Dr. Bright, Ellis, Officers Gibson and Orozco, and
21
Warden Spearman moved for leave to file a motion for reconsideration of the Court’s denial of
22
defendants’ motion for summary judgment. ECF No. 206. Those defendants pointed out that they
23
had only filed a single motion for summary judgment, and had not joined defendant Dr. Ahmed’s
24
motion for summary judgment of July 2016. See ECF No. 90. The Court concluded that
25
defendants Dr. Bright, Ellis, Officer Orozco, Officer Gibson, Officer Lopez, and Warden
26
27
28
13
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
Spearman could collectively file one motion for summary judgment by August 3, 2018. ECF No.
2
213. The Court therefore denied as moot defendants’ motion for leave to file a motion for
3
reconsideration. Id.
Then, the Court referred the parties to Magistrate Judge Nathanael Cousins for a settlement
4
5
conference on February 27, 2018. See ECF Nos. 219 & 225. The parties failed to come to an
6
agreement at that conference. The parties also failed to reach a settlement at further settlement
7
conferences on March 19, 2018 and March 23, 2018. ECF Nos. 230 & 231.
On August 3, 2018, defendants Warden Spearman, Ellis, Dr. Bright, and Officers Orozco,
8
9
Gibson, and Lopez filed the instant motion for judgment on the pleadings and for summary
judgment. ECF No. 238 (“Mot.”). Plaintiff filed an opposition on August 17, 2018, ECF No. 241
11
United States District Court
Northern District of California
10
(“Opp.”), and defendants filed a reply on August 24, 2018. ECF No. 243 (“Reply”).
In addition, on August 3, 2018, defendant Dr. Ahmed moved for leave to file a successive
12
13
motion for summary judgment.1 ECF No. 239. On August 17, 2018, plaintiff filed a motion for
14
leave to file a late opposition to Dr. Ahmed’s motion for leave to file a successive summary
15
judgment motion. ECF No. 242. Plaintiff attached to his motion for leave his proposed late
16
opposition to Dr. Ahmed’s motion for leave. ECF No. 242-2.
17
II.
LEGAL STANDARD
Summary judgment is proper where the pleadings, discovery, and affidavits show that
18
19
there is “no genuine dispute as to any material fact and [that] the movant is entitled to judgment as
20
a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those which may affect the outcome of
21
the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a
22
material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for
23
24
25
26
27
28
1
The motion caption also lists all other defendants as movants. ECF No. 239 at 1. However, the
motion concerns only whether Dr. Ahmed can file a successive summary judgment motion, as the
Court previously granted the other defendants permission to file a summary judgment motion.
ECF No. 213.
14
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
the nonmoving party. See id.
The Court will grant summary judgment “against a party who fails to make a showing
2
3
sufficient to establish the existence of an element essential to that party’s case, and on which that
4
party will bear the burden of proof at trial [,] . . . since a complete failure of proof concerning an
5
essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”
6
See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The moving party bears the initial
7
burden of identifying those portions of the record that demonstrate the absence of a genuine issue
8
of material fact. Id. The burden then shifts to the nonmoving party to “go beyond the pleadings,
9
and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on
file, designate specific facts showing that there is a genuine issue for trial.” See id. at 324 (internal
11
United States District Court
Northern District of California
10
quotations omitted).
12
For purposes of summary judgment, the Court must view the evidence in the light most
13
favorable to the nonmoving party; if the evidence produced by the moving party conflicts with
14
evidence produced by the nonmoving party, the court must assume the truth of the evidence
15
submitted by the nonmoving party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999).
16
The Court’s function on a summary judgment motion is not to make credibility determinations or
17
weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv. v. Pacific
18
Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
The Court evaluates a motion for judgment on the pleadings under Federal Rule of Civil
19
20
Procedure 12(c) under the same standard as that used for Rule 12(b)(6). Cafasso v. Gen.
21
Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011). Therefore, the Court accepts all
22
factual allegations in the complaint as true and takes all inferences in the nonmoving party’s favor.
23
Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).
24
III.
25
26
27
28
DISCUSSION
A. Dr. Ahmed’s second summary judgment motion
15
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
At the outset, the Court must consider whether to grant Dr. Ahmed leave to file a second
2
summary judgment motion and whether to grant plaintiff leave to oppose Dr. Ahmed’s motion for
3
leave. The Court will grant both motions. The Court considers first plaintiff’s motion for leave to
4
file a late opposition to Dr. Ahmed’s motion for leave to file a second summary judgment motion.
5
Plaintiff failed to oppose Dr. Ahmed’s administrative motion for leave within the required
6
four days. See Civil Local Rule 7-11(b). “To determine whether a party’s failure to meet a
7
deadline constitutes ‘excusable neglect,’ courts must apply a four factor test, examining: (1) the
8
danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on
9
the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.”
Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010). In this case, plaintiff’s
11
United States District Court
Northern District of California
10
counsel, who is litigating the case pro bono, attests that he missed the deadline to oppose Dr.
12
Ahmed’s motion for leave due to a calendaring error. ECF No. 242-1. The Court concludes that
13
plaintiff’s counsel’s failure constitutes excusable neglect. As to the first two factors, the length of
14
the delay was ten days and, because the Court has not yet ruled on Dr. Ahmed’s motion for leave
15
or his proposed motion for summary judgment, there is little danger of prejudice to Dr. Ahmed if
16
the Court permits plaintiff to file a late opposition. Moreover, plaintiff’s counsel attests that he
17
made a good-faith calendaring error; thus the third and fourth factors also weigh in favor of
18
granting plaintiff’s motion for leave. See Pincay v. Andrews, 389 F.3d 853, 855, 859 (9th Cir.
19
2004) (en banc) (concluding that district court did not abuse its discretion in excusing attorney’s
20
24-day filing delay due to a calendaring error). The Court considers plaintiff’s late opposition to
21
Dr. Ahmed’s motion for leave. See ECF No. 242-2.
22
“[D]istrict courts have discretion to entertain successive motions for summary judgment.”
23
Hoffman v. Tonnemacher, 593 F.3d 908, 911 (9th Cir. 2010). Although a court “retain[s]
24
discretion to ‘weed out frivolous or simply repetitive motions,’” the filing of a second motion for
25
summary judgment can encourage the efficient resolution of lawsuits. Id. (quoting Knox v.
26
27
28
16
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
Southwest Airlines, 124 F.3d 1103, 1106 (9th Cir. 1997)). Dr. Ahmed’s proposed second
2
summary judgment motion relies on the same evidence and same legal arguments as the other
3
defendants’ summary judgment motion. Compare, e.g., ECF No. 239-1 at 17 with ECF No. 238 at
4
5. Thus, allowing Dr. Ahmed to file his second summary judgment motion promotes judicial
5
efficiency. Moreover, permitting Dr. Ahmed to file his motion will not prejudice plaintiff, who
6
responded to Dr. Ahmed’s proposed arguments in his brief opposing the other defendants’ motion.
7
Opp. at 4. Dr. Ahmed’s motion is also not frivolous or repetitive. His previous summary
8
judgment motion addressed only Counts 2 and 14, which are not at issue in the instant motion, and
9
his legal arguments have a basis in the relevant law. See ECF No. 90.
10
United States District Court
Northern District of California
11
12
13
Accordingly, the Court GRANTS Dr. Ahmed’s motion for leave to file a second motion
for summary judgment.
B. Motion for judgment on the pleadings
In their motion for judgment on the pleadings, defendants contend that the Eleventh
14
Amendment bars plaintiff’s claims for money damages against defendants in their official
15
capacities. Mot. at 19. However, as the Court has already stated in a previous order, defendants
16
failed to raise the Eleventh Amendment immunity defense in their opening motion to dismiss
17
under Federal Rule of Civil Procedure 12(b)(6). ECF No. 204 at 4. Under Federal Rule of Civil
18
Procedure 12(g)(2), if a party omits an affirmative defense—other than the defense of a lack of
19
subject-matter jurisdiction—from an earlier Rule 12 motion, the party may not in a subsequent
20
motion raise that defense. Eleventh Amendment immunity “does not implicate a federal court’s
21
subject matter jurisdiction in any sense” and thus “should be treated as an affirmative defense.”
22
Tritchler v. County of Lake, 358 F.3d 1150, 1153–54 (9th Cir. 2004) (quoting ITSI TV Prods., Inc.
23
v. Agric. Ass’ns, 3 F.3d 1289, 1291 (9th Cir. 1993)). Accordingly, Rule 12(g)(2) prevents the
24
Court’s consideration of defendants’ Eleventh Amendment affirmative defense. See also Demshki
25
v. Monteith, 255 F.3d 986, 989 (9th Cir. 2001) (Eleventh Amendment immunity is an affirmative
26
27
28
17
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
defense “that must be raised early in the proceedings to provide fair warning to the plaintiff,” or
2
else can be waived) (internal quotation marks and citation omitted). The Court thus DENIES
3
defendants’ motion for judgment on the pleadings.
4
C. Exhaustion
5
1. Legal standard
6
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought
7
with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner
8
confined in any jail, prison, or other correctional facility until such administrative remedies as are
9
available are exhausted.” 28 U.S.C. § 1997e(a). Failure to exhaust is an affirmative defense under
the PLRA. Jones v. Bock, 549 U.S. 199, 211 (2007). Defendants have the burden of raising and
11
United States District Court
Northern District of California
10
proving the absence of exhaustion, and inmates are not required to specifically plead or
12
demonstrate exhaustion in their complaints. Id. at 215–17. Defendants are entitled to summary
13
judgment if the undisputed record evidence proves that the prisoner failed to exhaust his available
14
administrative remedies. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc). If
15
defendant meets that burden, the burden shifts to the prisoner to show that there is “something in
16
his particular case that made the existing and generally available remedies effectively unavailable
17
to him.” Id. at 1172.
18
“Exhaustion requires complying with an agency’s ‘critical procedural rules,’ and it is
19
justified by the agency’s need to ‘impos[e] some orderly structure on the course of its
20
proceedings.’” Fuqua v. Ryan, 890 F.3d 838, 844 (9th Cir. 2018) (alteration in original) (quoting
21
Woodford v. Ngo, 548 U.S. 81, 90–91 (2006)). A prisoner is only required to exhaust “available”
22
administrative remedies. See 42 U.S.C. § 1997e(a). An administrative remedy may be
23
unavailable if the procedure “operates as a simple dead end—with officers unable or consistently
24
unwilling to provide any relief to aggrieved inmates;” is “so opaque that it becomes, practically
25
speaking, incapable of use;” or “prison administrators thwart inmates from taking advantage of a
26
27
28
18
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
grievance process through machination, misrepresentation, or intimidation.” Ross v. Blake, 136 S.
2
Ct. 1850, 1859–60 (2016).
3
As explained above, CDCR provides its inmates and parolees the right to appeal
4
administratively “any policy, decision, action, condition or omission by the department or its staff
5
that the inmate or parolee can demonstrate as having a material adverse effect upon his or her
6
health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). In order to exhaust available
7
administrative remedies within this system, a prisoner must submit his complaint on Form 602 and
8
proceed through several levels of appeal: (1) informal level grievance filed directly with any staff
9
member, (2) first formal level appeal filed within one of the institution’s appeal coordinators, (3)
second formal level appeal filed with the institution head or designee, and (4) Director’s level
11
United States District Court
Northern District of California
10
appeal filed with the CDCR director or designee. Cal. Code Regs. tit. 15, § 3084.5. Completion
12
of that procedure satisfies the administrative remedies exhaustion requirement under the PLRA.
13
Woodford v. Ngo, 548 U.S. 81, 90 (2006).
14
2. Analysis
15
Defendants move for summary judgment on Counts 1, 3–6, 8, and 11–13 on the grounds
16
that plaintiff failed to exhaust his administrative remedies. Mot. at 22. Defendants do not contend
17
that plaintiff failed to exhaust his administrative remedies for Counts 7 and 9. The Court
18
considers each Count in turn.
19
20
a. Count 1
In Count 1, plaintiff alleges that defendant Dr. Ahmed violated the Eighth Amendment by
21
altering plaintiff’s insulin regimen in May 2013. ECF No. 31 at 17. Defendants contend that
22
plaintiff failed to exhaust his administrative remedies on Count 1 because plaintiff failed to appeal
23
CTF-HC-23039056 to the Director’s level. Mot. at 7. In that appeal, plaintiff explained that Dr.
24
Ahmed had changed his insulin regimen on May 23 and requested several treatment changes,
25
including the daily use of fast-acting insulin. ECF No. 198, AGO 027–28. Dr. Ahmed denied the
26
27
28
19
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
appeal at the first level. Id. at AGO 029. Plaintiff concedes that he failed to appeal the denial to
2
the Director’s level, but contends that further appeal was “unavailable” because the CCHCS
3
Appeals Office delayed nearly six months in returning his appeal. Opp. at 11. The record
4
indicates that on three occasions, the Appeals Office informed plaintiff that its response to the
5
appeal would be delayed due to the “[c]omplexity of the decision action or policy, requiring
6
additional research.” ECF No. 241-24 at 3–5.
That delay alone did not render plaintiff’s administrative remedies unavailable. Ordinarily,
7
the Appeals Office must complete its first level review of an appeal “within 30 working days of
9
receipt by the appeals coordinator.” Cal. Code. Regs., tit. 15, § 3084.8(c)(1). However, there are
10
exceptions to those time limits. One such exception permits extension of the time limits based on
11
United States District Court
Northern District of California
8
“[t]he complexity of the decision, action, or policy requiring additional research.” Id. at §
12
3084.8(d)(2). The Appeals Office used that precise language in each letter notifying plaintiff of its
13
processing delays. See ECF No. 241-24 at 3–5. Thus, plaintiff’s claim that defendants
14
“improperly fail[ed] to process [his] grievance” is without merit. Opp. at 11 (citing Andres v.
15
Marshall, 867 F.3d 1076, 1079 (9th Cir. 2017) (per curiam)). In Andres, for example, the prison
16
failed entirely to process the California prisoner’s 602 Form, id. at 1078, but that is not the case
17
here.
18
Plaintiff’s attempted reliance on Brown v. Valoff, 422 F.3d 926 (9th Cir. 2005), is also
19
misplaced. In Brown, the Ninth Circuit explained that “[d]elay in responding to a grievance,
20
particularly a time-sensitive one, may demonstrate that no administrative process is in fact
21
available.” Id. at 943 n.18. However, Brown held that the plaintiff’s administrative remedies were
22
available because nothing in the record suggested that the plaintiff was “prejudiced by the long
23
time it took to conclude the investigation into his staff complaint.” Id. The other circuit court
24
cases cited in Brown shed light on the meaning of “prejudice.” For example, in Foulk v. Charrier,
25
262 F.3d 687 (8th Cir. 2001), the Eighth Circuit concluded that a prison’s failure to respond to
26
27
28
20
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
prisoner’s informal request, which precluded him from filing an administrative appeal, rendered
2
administrative remedies unavailable. Id. at 698; see also Jernigan v. Stuchell, 304 F.3d 1030,
3
1032 (10th Cir. 2002) (citing cases for the proposition that the “failure to respond to a grievance
4
within the time limits contained in the grievance policy renders an administrative remedy
5
unavailable”).
6
In this case, the CDCR appeals process did not “operate as a simple dead end.” Ross, 136
7
S. Ct. at 1859. The Appeals Office’s delays may have frustrated plaintiff, but unlike the plaintiffs
8
in Andres and Foulk, plaintiff was not in fact prevented from pursuing his administrative
9
remedies. It was plaintiff who chose not to pursue his remedies to the Director’s level. Thus,
plaintiff did not exhaust his administrative remedies on Count 1. Accordingly, the Court
11
United States District Court
Northern District of California
10
GRANTS defendants’ motion for summary judgment on Count 1 on non-exhaustion grounds.
12
b. Count 3
13
In Count 3, plaintiff alleges that defendants Ellis and Dr. Bright violated the Eighth
14
Amendment by denying plaintiff’s request for fast-acting Humalog insulin. ECF No. 31 at 39–40.
15
Defendants contend that plaintiff failed to exhaust his administrative remedies on this Count
16
because in appeal CTF-HC-14040937, plaintiff requested Humalog, but did not mention Ellis or
17
Dr. Bright by name. Mot. at 8. CCHCS cancelled appeal CTF-HC-14040937 at the Director’s
18
level as duplicative of appeal CTF-HC-14040223. ECF No. 198, AGO 058. However, plaintiff
19
pursued appeal CTF-HC-14040223 to the Director’s level, where CCHCS addressed and denied
20
plaintiff’s request for Humalog insulin. Id. at AGO 059–60.
21
Moreover, plaintiff was not required to name Ellis and Dr. Bright in his appeals to exhaust
22
his administrative remedies. Prisoners are instructed to “list all staff member(s) involved and . . .
23
describe their involvement in the issue” when completing a 602 Form. Cal. Code Regs. tit. 15, §
24
3084.2(a)(3). However, if a prisoner does not know the staff member’s name, “he or she shall
25
provide any other available information that would assist the appeals coordinator in making a
26
27
28
21
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
reasonable attempt to identify the staff member(s) in question.” Id. The PLRA itself imposes no
2
“‘name all defendants’ requirement.’” Jones, 549 U.S. at 217; see also Griffin v. Arpaio, 557 F.3d
3
1117, 1120 (9th Cir. 2009) (“The primary purpose of a grievance is to alert the prison to a problem
4
and facilitate its resolution, not to lay groundwork for litigation.”).
The Ninth Circuit addressed and rejected an argument similar to defendants’ in Sapp v.
5
6
Kimbrell, 623 F.3d 813 (9th Cir. 2010). In Sapp, the Ninth Circuit pointed to the language of the
7
relevant CDCR regulation, which then required an inmate to “describe the problem and the action
8
requested,” and thus concluded that “[a] grievance suffices to exhaust a claim if it puts the prison
9
on adequate notice of the problem for which the prisoner seeks redress.” Id. at 824. The Sapp
Court therefore concluded that the plaintiff “was not required to identify [defendant] by name to
11
United States District Court
Northern District of California
10
exhaust the grievance against him.” Id. The language of the regulation has changed slightly—now
12
an inmate must “describe the specific issue under appeal and the relief requested,” Cal. Code
13
Regs., tit. 15, § 3084.2(a)—but its basic thrust remains the same. The Court continues to follow
14
Sapp.
15
Moreover, to the extent that defendants argue that plaintiff must exhaust his remedies
16
against each individual defendant, this Court has previously held in analogous circumstances that
17
a plaintiff need not separately exhaust administrative remedies against a supervisory official if the
18
plaintiff has already exhausted the same grievance. Gonzalez v. Ahmed, 67 F. Supp. 3d 1145,
19
1154 (N.D. Cal. 2014). In Gonzalez, this Court concluded that whether a supervisory official
20
“was aware of this alleged inadequate treatment but denied [p]laintiff access to a different
21
physician” or otherwise failed to intervene is “directly related” to the plaintiff’s claim against the
22
treating physician, which the plaintiff had exhausted. Id. Therefore, plaintiff need not separately
23
exhaust his claims against supervisory defendants like Ellis and Spearman.
24
Here, the Director’s level denial of plaintiff’s appeal CTF-HC-14040223 addressed
25
plaintiff’s request for Humalog insulin. ECF No. 198, AGO 059. The prison was thus “on
26
27
28
22
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
adequate notice of the problem for which the prisoner seeks redress.” Sapp, 623 F.3d at 824.
2
Accordingly, the Court DENIES defendants’ motion for summary judgment on Count 3 on non-
3
exhaustion grounds.
4
5
c. Count 4
In Count 4, plaintiff alleges that defendants Dr. Ahmed, Ellis, and Warden Spearman
6
violated the Eighth Amendment by failing to treat ketoacidosis that plaintiff developed after Dr.
7
Ahmed changed plaintiff’s insulin regimen. ECF No. 31 at 43-44. Defendants contend that
8
plaintiff failed to exhaust this claim because appeal CTF-HC-13039189 does not specifically refer
9
to ketoacidosis. Mot. at 10. The appeal frames the issue as “insulin limits by Dr. Ahmed force
harm by high blood sugar levels and illness” and “sugar raise creates harm - leads to death.” ECF
11
United States District Court
Northern District of California
10
No. 198, AGO 102–03. Plaintiff contends that his statements “precisely described” ketoacidosis.
12
Opp. at 15. Elevated blood sugar levels can cause ketoacidosis. ECF No. 241-47 ¶ 30. At the
13
least, plaintiff’s appeal was more than sufficient to advise the prison that plaintiff was complaining
14
about health deterioration due to the insulin regimen change, which is the basis for Count 4.
15
Plaintiff therefore “put the prison on adequate notice of the problem for which [he sought]
16
redress.” Sapp, 623 F.3d at 824.
17
Defendants contend that plaintiff did not exhaust against Ellis and Warden Spearman
18
because CTF-HC-13039189 did not mention them. Mot. at 10. For the reasons articulated in the
19
discussion of Count 3, plaintiff was required to identify his problem and the relief requested, not
20
to name all individual defendants. Accordingly, the Court DENIES defendants’ motion for
21
summary judgment on non-exhaustion grounds.
22
23
d. Count 5
In Count 5, plaintiff alleges that defendants Ellis, Warden Spearman, and Dr. Ahmed
24
violated the Eighth Amendment by denying plaintiff’s request for an on-person glucometer. ECF
25
No. 31 at 50–51. Defendants again contend that plaintiff failed to exhaust administrative remedies
26
27
28
23
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
because he did not specifically name any of the defendants or allege that Dr. Ahmed “authored the
2
policy” related to glucometers. Mot. at 12. For the reasons articulated in the discussion of Count
3
3, plaintiff was required to identify his problem and the relief requested, not to name all individual
4
defendants. In appeal CTF-HC-13038910, which plaintiff pursued through the Director’s level,
5
plaintiff requested an on-person glucometer. ECF No. 198, AGO 124. That denial is the basis for
6
Count 5. Plaintiff thus “put the prison on adequate notice of the problem for which [he sought]
7
redress.” Sapp, 623 F.3d at 824. Accordingly, the Court DENIES defendants’ motion for
8
summary judgment on Count 5 on non-exhaustion grounds.
9
10
e. Count 6
In Count 6, plaintiff alleges that in separate incidents in September 2013, defendants
United States District Court
Northern District of California
11
Officer Lopez, Officer Gibson, and Officer Orozco denied him access to medical care. ECF No.
12
31 at 56–58. Defendants contend plaintiff failed to exhaust this claim because although plaintiff
13
raised the issue in appeal CTF-HC-13038959, plaintiff did not appeal the denial to the Director’s
14
level. Mot. at 13. Plaintiff contends that defendants conceded exhaustion of this claim in their
15
first attempted motion for summary judgment. Opp. at 18; see ECF No. 197 at 20:22–23. The
16
law of the case doctrine, although discretionary, “generally precludes a court from reconsidering
17
an issue decided previously by the same court or a higher court in the identical case.” Hall v. City
18
of L.A., 697 F.3d 1059, 1067 (9th Cir. 2012). “The issue in question must have been decided
19
explicitly or by necessary implication in the previous disposition.” Id. The Court did not rule on
20
exhaustion in its prior order. ECF No. 204 at 6. Thus, because the Court did not decide the issue
21
in any of its previous orders, the Court will consider defendants’ exhaustion argument.
22
Plaintiff concedes non-exhaustion, but contends that administrative remedies were
23
unavailable because of a “four month delay and bureaucratic runaround.” Opp. at 18. In appeal
24
CTF-HC-13039589, plaintiff raised the issue “access to medical clinic and RN denied by security
25
officers Officer Lopez, Officer Orozco, Balli, Officer Gibson when emergency declared.” ECF
26
27
28
24
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
No. 238-19 at 6. Plaintiff asserted “diabetes is critical care and needs are a medical necessity.” Id.
2
at 8. The prison appeals coordinator forwarded the first level appeal to health care staff because
3
an “appeal should be submitted to the appropriate CDCR unit for review.” Id. at 10. Then, the
4
health care appeals coordinator rejected the appeal for pertaining to both “custody and medical
5
issues” and instructed plaintiff to “[s]eparate your issues and resubmit health care issues.” Id. at
6
20. In January 2014, health care staff rejected the appeal because it was not “a health care services
7
issue.” Id. at 3. The rejection informed plaintiff that if he wished to complain about the custody
8
officers, he should submit Form 602 to the Inmate Appeals Office. Id. Plaintiff does not point to
9
any evidence that he did so.
10
To support his argument that administrative remedies were unavailable to him, plaintiff
United States District Court
Northern District of California
11
cites only to Williams v. Paramo, 775 F.3d 1182 (9th Cir. 2015), in which the Ninth Circuit held
12
that administrative remedies were unavailable because correctional officers refused to accept a
13
prisoner’s attempted grievance and his subsequent appeal. Id. at 1191–92. Williams only
14
demonstrates how plaintiff has failed to carry his burden. The Williams plaintiff attempted to file
15
an appeal, but a custody officer “refused to file the appeal.” Id. at 1192. By contrast, CTF
16
permitted plaintiff to file his appeal, but eventually instructed him to separate the health care and
17
custody staff issues. Plaintiff has not shown that after that direction, he filed an appeal with the
18
Inmate Appeals Office. If plaintiff had followed the prison’s directions, but his appeal was still
19
rejected, his case would be closer to Williams. Plaintiff has not shown that the delay in responding
20
to his grievance rendered administrative remedies unavailable. See also Wilson v. Zubiate, 718 F.
21
Appx. 479, 481–82 (9th Cir. 2017) (rejecting the contention that CDCR’s invocation of a
22
procedural bar to reject rather than consider the merits of a plaintiff’s grievance rendered
23
administrative remedies unavailable).
24
25
26
27
28
Accordingly, the Court GRANTS defendants’ motion for summary judgment on Count 6
on non-exhaustion grounds.
25
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
2
f. Count 8
In Count 8, plaintiff alleges that in November 2013, Officer Lopez prevented plaintiff from
eating dinner after plaintiff had received insulin. ECF No. 31-1 at 10–12. Defendants contend
4
that plaintiff failed to exhaust his appeal raising this issue. Mot. at 15. On November 6, 2013,
5
plaintiff filed an appeal stating that on November 4, Officer Lopez “denied a type one diabetic to
6
eat dinner (after his shot) at 1600 hours.” ECF No. 241-36 at 2. Plaintiff noted that the issue was
7
a “repeat.” Id. at 4. The prison rejected the appeal as duplicative of CTF-S-01361. Id. at 2. That
8
earlier appeal concerned only Officer Orozco’s conduct, which is the basis of Count 7. See ECF
9
No. 76-2 at 10 (CTF-S-01361 appeal complaining that Officer Orozco denied plaintiff a meal in
10
July 2013). As a result, plaintiff contends that the prison’s “[i]mproper screening” of plaintiff’s
11
United States District Court
Northern District of California
3
second, Officer Lopez-focused appeal rendered administrative remedies effectively unavailable.
12
Opp. at 20. Defendants’ only reply is that plaintiff alleged in his amended complaint that he
13
exhausted Count 8 via CTF-S-01361. Reply at 13. However, plaintiff has no obligation to plead
14
exhaustion of administrative remedies; the burden is on defendants to show that plaintiff did not
15
exhaust. Albino, 747 F.3d at 1166. The burden then shifts to plaintiff to show that administrative
16
remedies were “effectively unavailable.” Id. at 1172. On Count 8, plaintiff has at least raised a
17
genuine dispute of material fact regarding whether administrative remedies were effectively
18
unavailable. Plaintiff showed that he complained about Officer Lopez’s conduct, but that the
19
prison screened it out as duplicative of plaintiff’s prior appeal concerning a different officer. The
20
record permits the inference that the prison’s screening was improper and prevented plaintiff from
21
pursuing his appeal of Officer Lopez’s conduct, such that “administrative remedies [were]
22
therefore plainly unavailable.” Sapp, 623 F.3d at 823.
23
24
25
26
27
28
Accordingly, the Court DENIES defendants’ motion for summary judgment on Count 8 on
non-exhaustion grounds.
g. Counts 11–13
26
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
Plaintiff’s allegations in Counts 11–13 relate to defendants’ April 2015 denial of bedtime
2
insulin and bedtime blood sugar monitoring. See ECF No. 31-1 at 35, 45–46, 51–52. Although
3
plaintiff’s amended complaint raises other factual allegations under those Counts, plaintiff
4
explains in his opposition brief that Counts 11–13 all arise from the denial of bedtime insulin and
5
blood tests. Opp. at 21. Thus, the factual issues relevant to defendants’ non-exhaustion arguments
6
are common across all three Counts, and the Court considers those arguments as a group.
7
Defendants contend only that plaintiff did not exhaust his remedies as to certain defendants
8
because appeals CTF-HC-15042008 and CTF-HC-15042033 did not identify the defendants by
9
name. Mot. at 16–18. Defendants concede, however, that plaintiff exhausted his administrative
remedies against other defendants. See, e.g., Mot. at 16 (conceding that plaintiff exhausted Count
11
United States District Court
Northern District of California
10
11 against Dr. Ahmed, but arguing that it was not exhausted against Ellis). For the reasons
12
articulated in the discussion of Count 3, plaintiff was required to identify his problem and the
13
relief requested, not to name all individual defendants. On reply, defendants continue to contend
14
that because Ellis had no notice of plaintiff’s administrative appeals, plaintiff failed to exhaust his
15
remedies against Ellis. Reply at 14. However, the Ninth Circuit’s decision in Sapp, and this
16
Court’s discussion of Sapp in Gonzalez, foreclose defendants’ argument. “A grievance suffices to
17
exhaust a claim if it puts the prison on adequate notice of the problem for which the prisoner seeks
18
redress.” Sapp, 623 F.3d at 824. If the prison is on notice, the plaintiff need not have named all
19
individual defendants, as allegations against supervisory defendants are “encompassed within
20
[plaintiff’s] original grievance.” Gonzalez, 67 F. Supp. 3d at 1154. Defendants point to no case
21
law supporting their theory of defendant-by-defendant exhaustion.
22
Here, plaintiff filed appeal CTF-HC-15042008 after Dr. Bright rejected Dr. Kumar’s
23
recommendation that plaintiff receive sliding scale bedtime insulin and a bedtime blood sugar test.
24
See ECF No. 31-1 at 35. In that appeal, plaintiff complained that Dr. Bright “stopped a[n] insulin
25
treatment designed by a CDCR employed endocrinologist” and asked the prison to “follow
26
27
28
27
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
specialist orders to avoid harm.” ECF No. 198, AGO 150. In appeal CTF-HC-15042032, plaintiff
2
asserted that Dr. Bright had violated a California regulation by denying plaintiff’s request for a
3
nighttime blood test. Id. at AGO 169. Both of plaintiff’s requests were considered and denied at
4
the Director’s level, as defendants concede. Id. at AGO 148, 167. Defendants therefore have not
5
shown that plaintiff failed to exhaust his administrative remedies. Accordingly, the Court
6
DENIES defendants’ motion for summary judgment on Counts 11–13 on non-exhaustion grounds.
7
In sum, the Court grants defendants’ motion for summary judgment on non-exhaustion
8
grounds on Counts 3 and 6 only. The Court next addresses defendants’ motion for summary
9
judgment on the merits of the remaining claims, Counts 1, 4–5, 7–9, and 11–13.
D. Deliberate Indifference
11
United States District Court
Northern District of California
10
1. Legal standard
12
Deliberate indifference to a prisoner’s serious medical needs violates the Eighth
13
Amendment’s proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S.
14
97, 104 (1976). A determination of “deliberate indifference” involves an examination of two
15
elements: the seriousness of the prisoner’s medical need and the nature of the defendant’s
16
response to that need. McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on
17
other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).
18
A “serious” medical need exists if the failure to treat a prisoner’s condition could result in further
19
significant injury or the “unnecessary and wanton infliction of pain.” Id. (citing Estelle, 429 U.S.
20
at 104). A prison official is deliberately indifferent if he knows a prisoner faces a substantial risk
21
of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer v.
22
Brennan, 511 U.S. 825, 837 (1994). Insulin-dependent Type 1 diabetes is a serious medical
23
condition for purposes of Eighth Amendment analysis. Lolli v. County of Orange, 351 F.3d 410,
24
419 (9th Cir. 2003). The failure to provide a person suffering from Type 1 diabetes with
25
necessary food or insulin creates a serious risk of harm. Id. at 419–20.
26
27
28
28
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
To satisfy the second element of deliberate indifference, a prison official must not only “be
aware of facts from which the inference could be drawn that a substantial risk of serious harm
3
exists,” but “must also draw the inference.” Farmer, 511 U.S. at 837. Consequently, in order for
4
deliberate indifference to be established, plaintiff must show that defendant purposefully acted or
5
failed to act, and that harm resulted. See McGuckin, 974 F.2d at 1060. A claim of medical
6
malpractice or negligence is insufficient to establish a violation of the Eighth Amendment. Id. at
7
1059. Nor do disagreements in medical opinion suffice to show deliberate indifference. Toguchi
8
v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). “Rather, to prevail on a claim involving choices
9
between alternative courses of treatment, a prisoner must show that the chosen course of treatment
10
was ‘medically unacceptable under the circumstances,’ and was chosen ‘in conscious disregard of
11
United States District Court
Northern District of California
2
an excessive risk to [the prisoner’s] health.” Id. (citing Jackson v. McIntosh, 90 F.3d 330, 332
12
(9th Cir. 1996) (alteration in original)).
13
Supervisory officials are not subject to vicarious liability under § 1983. Lemire v. Cal.
14
Dep’t of Corrs. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013). A prison official in a supervisory
15
position may be held liable under § 1983, however, “‘if he or she was personally involved in the
16
constitutional deprivation or a sufficient causal connection exists between the supervisor’s
17
unlawful conduct and the constitutional violation.’” Lemire v. Cal. Dep’t of Corrs. & Rehab., 726
18
F.3d 1062, 1074–75 (9th Cir. 2013) (quoting Lolli, 351 F.3d at 418). A prisoner may demonstrate
19
such a causal connection via evidence of the supervisor’s “culpable action or inaction in the
20
training, supervision, or control of subordinates; acquiescence in a constitutional violation; or
21
“conduct that showed a reckless or callous indifference to the rights of others.” Id. at 1075
22
(quoting Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000)).
23
2. Analysis
24
Defendants move for summary judgment on plaintiff’s remaining causes of action, Counts
25
26
27
28
1, 4–5, 7–9, and 11–13. Plaintiff has filed an opposition, and defendants have filed a reply. The
29
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
Court views the facts in the light most favorable to plaintiff, the non-moving party, and addresses
2
plaintiff’s causes of action in order.
3
a. Count 3
4
In Count 3, plaintiff alleges that defendants Ellis and Dr. Bright violated the Eighth
5
Amendment by denying plaintiff’s request for fast-acting Humalog insulin. ECF No. 31 at 39–40.
6
In July 2014, Dr. Kumar recommended plaintiff switch to Humalog, and Dr. Ahmed thus
7
completed a request for Humalog. ECF No. 198, AGO 049. However, Humalog was a non-
8
formulary medication not on CCHCS’s pre-approved list, and its dispensation required Dr.
9
Bright’s approval. Id. Dr. Bright rejected the request on the basis that “humalog does not provide
10
United States District Court
Northern District of California
11
better control than humulin R [and] is more difficult to manage in prison.” Id.
Defendants contend that summary judgment is warranted because Dr. Bright thought it was
12
medically appropriate not to prescribe Humalog insulin in a prison setting. Mot. at 8.
13
Specifically, because Humalog is an “ultra-fast-acting” insulin that takes effect in about 15
14
minutes, a patient must receive it shortly before food is consumed. ECF No. 238-4 ¶ 5. If a
15
patient is unable to consume food in that time, then the patient is at risk of hypoglycemia. Id. at ¶
16
5. Patients in a correctional setting do not self-inject insulin and cannot control when they eat
17
meals. Id. at ¶ 6. According to Dr. Bright, Regular insulin, which takes effect in about 30
18
minutes, thus “provides an inmate with more time to consume food and avoid the risks of
19
Humalog-induced hypoglycemia.” Id. Defendants’ expert Dr. Fitzgerald affirmed that “timing is
20
crucial with Humalog insulin.” ECF No. 238-7 ¶ 23.
21
In response, plaintiff contends that patient-prisoners may also be unable to eat within thirty
22
minutes after a Regular insulin injection. Opp. at 13. Moreover, plaintiff’s expert Dr. Koliwad
23
testified that after an injection of Regular insulin, “[t]he hypoglycemia, once it develops, is more
24
profound and more sustained and more difficult to contend with.” ECF No. 241-23 at 62:7-8. As
25
a result, Dr. Koliwad thought “it would have been useful” for the prison to give plaintiff Humalog
26
27
28
30
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
insulin. Id. at 38:4-8. However, Dr. Koliwad’s difference of opinion alone is not sufficient to
2
survive summary judgment. See Colwell v. Bannister, 763 F.3d 1060, 1068 (9th Cir. 2014) (“A
3
difference of opinion . . . between medical professionals [] concerning what medical care is
4
appropriate does not amount to deliberate indifference.”) (internal citation omitted). Instead,
5
plaintiff “must show that the course of treatment the doctors chose was medically unacceptable
6
under the circumstances and that the defendants chose this course in conscious disregard of an
7
excessive risk to plaintiff’s health.” Id. (internal citations and quotation marks omitted).
8
For example, in Colwell, the record indicated that the prison “ignored the
recommendations of treating specialists and instead relied on the opinions of non-specialist and
10
non-treating medical officials who made decisions based on an administrative policy” to deny
11
United States District Court
Northern District of California
9
cataract surgery for any prisoner with one “good” eye. Id. at 1069. Here, although Dr. Bright
12
disagreed with the prescription of Humalog, there is no evidence that Dr. Bright did so on the
13
basis of an administrative policy or any other medically unacceptable reason. Instead, Dr. Bright
14
denied the request because “[H]umalog does not provide better control then humulin R [and] is
15
more difficult to manage in prison” [sic]. ECF No. 198, AGO 049.
16
Plaintiff’s further contention that the prison denied him Humalog insulin solely because it
17
was a “non-formulary” medication is not supported by the record. See Opp. at 13. Dr. Bright
18
must approve all requests for non-formulary medications, which are those medications that CDCR
19
has not already approved for dispensation. ECF No. 238-4 ¶ 2; ECF No. 198, AGO 049. Dr.
20
Bright’s denial of a non-formulary medication request, without more, does not permit the
21
inference that he did so because it was a non-formulary medication. Plaintiff thus has not raised a
22
genuine dispute of material fact as to whether defendants’ reasons for denying Humalog insulin
23
were medically unacceptable.
24
25
26
27
28
Accordingly, the Court GRANTS defendants’ motion for summary judgment on Count 3.
b. Count 4
31
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
In Count 4, plaintiff alleges that defendants Dr. Ahmed, Ellis, and Warden Spearman failed
2
to treat plaintiff’s ketoacidosis. ECF No. 31 at 43-44. Specifically, plaintiff alleges that after
3
defendants changed plaintiff’s insulin regimen in May 2013, defendants became aware that
4
plaintiff’s “life [was] in danger” but continued to deny him mealtime insulin. Id. at 44.
5
First, defendants contend that plaintiff has not put forth evidence that he suffered from
6
ketoacidosis or that defendants were aware that he had ketoacidosis. Mot. at 9. Defendants
7
contend that they never tested for ketoacidosis because plaintiff never had symptoms that would
8
require a test. Id. at 10. As explained above, ketoacidosis is a very serious state associated with
9
prolonged hyperglycemia. See ECF No. 238-7 ¶¶ 21-22. Symptoms include “severe fatigue,
inability to walk, vomiting, abdominal pain, fruity odor of breath, difficulty breathing, confusion,
11
United States District Court
Northern District of California
10
and loss of consciousness.” Id. at ¶ 20. Plaintiff asserts that he suffered from several such
12
symptoms, ECF No. 241-16 at 5:6-9, but does not identify record evidence that defendants noticed
13
any symptoms of ketoacidosis.
14
However, plaintiff contends that his elevated blood sugar levels made defendants aware of
15
his serious medical needs. Opp. at 15. Plaintiff points to evidence that on several days after his
16
insulin regimen was altered, his blood sugar levels exceeded 400 mg/dL. See, e.g., ECF No. 241-
17
15 (chart showing that plaintiff’s blood sugar levels exceeded 400 mg/dL on June 24, June 26, and
18
June 28). Dr. Ahmed testified that if an inmate’s blood sugar levels exceeded 400 mg/dL, the
19
prison’s protocol was to conduct a urine test for ketone bodies to determine if the inmate had a
20
risk of ketoacidosis. ECF No. 241-21, 20:25-21:2-5. Yet no CTF medical staff person ever
21
conducted a ketone urine test on plaintiff despite his elevated readings. Dr. Ahmed testified that
22
“there was no reason to even test for ketoacidosis because [plaintiff’s] vital signs and heart rate
23
were regularly taken while at CTF and were within the normal ranges.” ECF No. 241-1 ¶ 13. Yet
24
on summary judgment, the question is whether plaintiff has “evidence from which a reasonable
25
jury could conclude that any of the [defendants] knew of . . . [a] substantial risk of serious harm
26
27
28
32
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
[plaintiff] faced if not properly treated.” Lolli, 351 F.3d at 420 (denying summary judgment
2
where plaintiff testified that he had told officers he suffered from diabetes and required food).
3
Given that the prison had a protocol to conduct a urine test for ketone bodies when an inmate’s
4
blood sugar levels exceeded 400 mg/dL, a reasonable jury could find that Dr. Ahmed, plaintiff’s
5
primary care physician, was aware of patient’s serious medical needs.
6
Second, defendants contend that “even if . . . [plaintiff] suffered from ketoacidosis during
7
the relevant period,” Ellis and Warden Spearman were not deliberately indifferent. Mot. at 10.
8
Plaintiff does not specifically respond to defendants’ contention. See Opp. at 14–15. Elsewhere
9
in his brief, plaintiff contends that Ellis and Warden Spearman “could have ordered Defendant
physicians to re-evaluate [plaintiff’s] care, consult an endocrinologist, or provide external
11
United States District Court
Northern District of California
10
emergency medical care.” Opp. at 12. Defendants offer evidence that neither Warden Spearman
12
nor Ellis was ever aware of plaintiff’s medical treatment. See ECF No. 238-6 at ¶¶ 4-5; ECF No.
13
238-20 at ¶¶ 4-5. Plaintiff does not identify any contrary evidence. The mere fact that Ellis
14
“provided administrative leadership and support for [p]laintiff’s physician,” ECF No. 197-1, ¶ 24,
15
does not raise the inference of a causal connection between plaintiff’s treatment and Ellis’s actions
16
or inaction. Plaintiff thus has not raised a genuine dispute of material fact as to whether either
17
Ellis or Warden Spearman was deliberately indifferent. See Lemire, 726 F.3d at 1075 (a prisoner
18
may establish supervisory liability via evidence of the supervisor’s involvement in training,
19
acquiescence in a violation, or own callous indifference).
20
21
22
23
Accordingly, the Court DENIES Dr. Ahmed’s motion for summary judgment on Count 4,
but GRANTS Warden Spearman and Ellis’s motion for summary judgment on Count 4.
c. Count 5
In Count 5, plaintiff alleges that defendants Dr. Ahmed, Ellis, and Warden Spearman
24
violated the Eighth Amendment by denying plaintiff’s request for an on-person glucometer. ECF
25
No. 31 at 50–51. For the reasons stated in the discussion of Count 4, Ellis and Warden Spearman
26
27
28
33
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
are entitled to summary judgment on this Count because plaintiff offers no evidence of any
2
connection between their actions or inactions and plaintiff’s treatment.
3
Dr. Ahmed denied plaintiff’s request for an on-person glucometer, a device used to self-
4
test a patient’s blood sugar levels, because one “was not medically indicated.” ECF No. 198,
5
AGO 124. At the time, CTF medical “did not have a policy of providing inmates with their own
6
glucometers.” ECF No. 240 ¶ 13 (declaration of Dr. Posson, the Chief Medical Executive at
7
CTF). Defendants contend that Dr. Ahmed’s decision was medically appropriate. Mot. at 11.
8
According to Dr. Posson, “during the period in question, it was not common practice to provide
9
inmates with glucometers because there was a lack of medical evidence demonstrating their
necessity in a correctional setting.” ECF No. 240 ¶ 13. Defendants’ expert Dr. Fitzgerald attested
11
United States District Court
Northern District of California
10
that in the correctional setting, plaintiff was not self-managing his disease, received blood tests
12
from CTF medical staff, and thus did not need an-person glucometer. ECF No. 238-7 ¶ 29; see
13
also ECF No. 238-1 ¶ 14 (Dr. Ahmed’s declaration characterizing on-person glucometer as a
14
“convenience” that was not medically necessary). Defendants also contend that on-person
15
glucometers may be unreliable. Mot at. 16; ECF No. 238-7 ¶ 30 (“[F]ingerstick blood-glucose
16
monitoring can be inaccurate, particularly with an uncalibrated meter or when a patient has
17
residual carbohydrate on the finger they stick for the blood.”).
18
Plaintiff does not dispute that he had access to other blood tests, but responds that there are
19
material issues of fact related to the medical necessity of an on-person glucometer for a brittle
20
Type 1 diabetic. Opp. at 16. Specifically, he contends that plaintiff needed to check his blood
21
sugar levels “much more frequently than three or four times per day, which is what the prison
22
provide[d].” Id. Plaintiff’s expert Dr. Koliwad attested that continuous self-tracking represents
23
“the trend in management of this condition” and is “highly beneficial,” but did not claim that an
24
on-person glucometer was medically necessary. ECF No. 241-47 ¶¶ 73–75. Likewise, Dr.
25
Kumar, the external endocrinologist who visited plaintiff at CTF, advised that plaintiff receive an
26
27
28
34
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
on-person glucometer, ECF No. 241-28, 241-29, but never wrote that one was required, and later
2
attested that “an on-person glucometer is not medically necessary.” ECF No. 238-9 ¶ 5. Thus,
3
plaintiff has not claimed that defendants’ decision was “medically unacceptable under the
4
circumstances.” Toguchi, 391 F.3d at 1058 (internal citation omitted).
5
Plaintiff also contends, relying again on Colwell, that the prison denied plaintiff’s
6
glucometer request because the request conflicted with prison policy rather than for medical
7
reasons. Opp. at 16. However, the critical problem in Colwell was that the prison’s enforcement
8
of its “one good eye” policy ignored the plaintiff’s medical need. See 763 F.3d at 1069 (reversing
9
grant of summary judgment because record supported inference that prison “disregarded the[]
recommendations” of specialists in favor of an administrative policy). By contrast, defendants in
11
United States District Court
Northern District of California
10
this case have offered evidence that their “no glucometer” policy was motivated by legitimate
12
medical concerns. Plaintiff has not identified contrary evidence raising a material dispute.
13
14
Accordingly, the Court GRANTS defendants’ motion for summary judgment on Count 5.
d. Count 7
15
In Count 7, plaintiff alleges that Officer Orozco prevented plaintiff from eating after
16
plaintiff had received an insulin injection. ECF No. 31-1 at 6, 8. On July 14, 2013, Officer
17
Orozco confined plaintiff to his cell during medication distribution and later forgot to release him,
18
which caused plaintiff to miss his regular meal time. Id.; ECF No. 238-11 ¶¶ 6-7. Defendants
19
contend there is no evidence to support this claim. Mot. at 14. In opposition, plaintiff contends
20
that his and Officer Orozco’s conflicting accounts of the incident preclude summary judgment.
21
Opp. at 18. However, while plaintiff identifies factual disputes in the record, plaintiff raises no
22
factual dispute about Officer Orozco’s state of mind. Evidence of negligence is not sufficient to
23
prove an Eighth Amendment deliberate indifference claim. See McGuckin, 974 F.2d at 1059.
24
Instead, “a defendant must purposefully ignore or fail to respond to a prisoner’s pain or possible
25
medical need.” Id. at 1060. In his declaration in support of summary judgment, Officer Orozco
26
27
28
35
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
acknowledged locking plaintiff in his cell, but asserted that it was a mistake not to release plaintiff
2
once medication distribution concluded. ECF No. 238-11 ¶ 7. In a grievance, plaintiff
3
complained Officer Orozco intentionally locked him in the cell during medication distribution, see
4
ECF No. 241-35 at 3, but plaintiff does not point to evidence that Officer Orozco’s failure to
5
release plaintiff was intentional or any other record evidence that would raise the inference that
6
Officer Orozco was deliberately indifferent. Thus, plaintiff has not raised a genuine dispute of
7
material fact.
8
9
10
Accordingly, the Court GRANTS defendants’ motion for summary judgment on Count 7.
e. Count 8
In Count 8, plaintiff alleges that on November 4, 2013, Officer Lopez prevented plaintiff
United States District Court
Northern District of California
11
from eating after plaintiff had received an insulin shot, and was thus deliberately indifferent to
12
plaintiff’s serious medical needs. ECF No. 31-1 at 10–12. Defendants contend that Count 8 is not
13
supported by any evidence and that alternatively, there is no evidence that plaintiff suffered harm.
14
Mot. at 14. In response, plaintiff points to evidence that Officer Lopez refused to release plaintiff
15
for a scheduled meal after plaintiff explained that he needed to eat following his insulin injection.
16
Opp. at 19. According to plaintiff, Officer Lopez placed plaintiff in his cell during a security
17
issue. ECF No. 241-9 at 6. Plaintiff had just taken his insulin, and informed Officer Lopez that
18
once the security issue was clear, he needed to eat. Id. However, Officer Lopez “laughed and
19
smiled” and told plaintiff to “eat crackers.” Id. Later, while the rest of the inmates ate, plaintiff
20
remained “in a locked cell.” Id. Officer Lopez denies that the incident occurred, but when the
21
parties offer conflicting evidence on summary judgment, the party assumes the truth of the non-
22
moving party’s evidence. See Grupo ICA, 198 F.3d at 1158. If plaintiff’s account is true, and
23
plaintiff informed Officer Lopez of the urgency of his need to eat after an insulin shot, Officer
24
Lopez was aware of plaintiff’s serious medical need and failed to act. Plaintiff thus has raised a
25
genuine dispute of material fact. See Lolli, 351 F.3d at 421 (reversing grant of summary judgment
26
27
28
36
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
where plaintiff told officers “of his deteriorating condition and ask[ed] for food”).
Defendants’ other argument, that plaintiff was not harmed, is immaterial to the question of
2
3
an Eighth Amendment violation. It is enough to prove deliberate indifference that defendants
4
“disregard[ed] an excessive risk to inmate health and safety.” Colwell, 763 F.3d at 1066 (internal
5
citations omitted); see also Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (“A prisoner need
6
not show his harm was substantial[.]”). Plaintiff contends that missing a meal could have induced
7
hypoglycemia. Opp. at 19. Indeed, plaintiff’s expert Dr. Koliwad attested that “[r]eceiving
8
insulin and then being forced to skip a meal would result in hypoglycemia.” ECF No. 241-47 ¶
9
72. Defendants’ expert also acknowledged the importance of pre-meal insulin and the seriousness
of hypoglycemia. ECF No. 238-7 ¶¶ 22–23, 25. Thus, plaintiff has raised a genuine dispute of
11
United States District Court
Northern District of California
10
material fact as to whether Officer Lopez’s conduct exposed plaintiff to excessive risk.
Accordingly, the Court DENIES defendants’ motion for summary judgment on Count 8.
12
f. Count 9
13
14
In Count 9, plaintiff alleges that Officer Lopez violated the Eighth Amendment by denying
15
plaintiff entry to his building at lunchtime. ECF No. 31-1 at 14–17. Defendants appear to contend
16
that summary judgment is warranted because plaintiff was not authorized to enter the building,
17
and because plaintiff did not suffer harm. Mot. at 15. According to plaintiff, he returned from an
18
appointment that ran long, received his insulin, and attempted to enter Lassen Hall. ECF No. 241-
19
37 at 2. Officer Lopez said that plaintiff could not enter Lassen Hall until the next release time,
20
which was over two hours later. Id. When plaintiff protested that he needed food, Officer Lopez
21
examined plaintiff’s pockets, found a snack, and said “that’s good enough.” Id. According to
22
Officer Lopez, she permitted all inmates returning from the yard to enter Lassen Hall between
23
11:45 and noon, ECF No. 197-4 at 17, and she did not deny plaintiff entry. ECF No. 241-31 at
24
66:7.
25
26
27
28
To support their motion, defendants point to documentation that after a review, the prison
37
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
concluded that plaintiff “was unable to substantiate that he was authorized to enter the building at
2
the time in question.” ECF No. 197-4 at 21. Also, plaintiff does not identify evidence that Officer
3
Lopez was aware of a serious medical need. Plaintiff informed Officer Lopez that he needed
4
lunch, and she advised him to have a snack, but there is no evidence in the record that plaintiff
5
otherwise informed Officer Lopez of his need. See Clement v. Gomez, 298 F.3d 898, 905 (9th Cir.
6
2002) (concluding that custody officers were subjectively aware of plaintiffs’ serious medical
7
needs due to plaintiffs’ “repeated requests for attention” and “numerous instances” of prior harm).
8
Plaintiff’s assertion that he needed lunch is not enough to raise a genuine dispute of material fact
9
as to whether Officer Lopez was aware of a serious medical need.
Accordingly, the Court GRANTS defendants’ motion for summary judgment on Count 9.
10
g. Counts 11–13
United States District Court
Northern District of California
11
Plaintiff’s allegations in Counts 11–13 all stem from the defendants’ denial of bedtime
12
13
insulin and bedtime blood sugar tests in April 2015.2 Count 11 stems from the defendants’ denial
14
of bedtime insulin, Count 12 stems from defendants’ denial of a bedtime blood sugar test, and
15
Count 13 alleges that the denial of bedtime insulin forced plaintiff not to eat full meals. See Opp.
16
at 21–22. Accordingly, as with defendants’ arguments regarding exhaustion, the Court addresses
17
defendants’ motion on those Counts as a group. The undisputed facts relating to these Counts are
18
as follows. Dr. Kumar had recommended providing plaintiff bedtime Regular insulin on a sliding
19
scale. ECF No. 31 at 35 (plaintiff’s medical visit notes stating “[s]een by endocrinologist, who
20
adv HS blood sugar check and add RI if > 200 sliding . . .”). Dr. Bright explained that “HS”
21
means a bedtime blood sugar check and “RI” means “Regular insulin.” ECF No. 241-38, 32:24-
22
33:2. The prison denied the request. As a result, according to plaintiff, he was unable to “eat full,
23
nutritious meals [like] other inmates.” Id. at 51. Plaintiff further explained that without a bedtime
24
25
26
27
28
2
To the extent that plaintiff’s amended complaint includes other factual allegations under Counts
11, 12, and 13, plaintiff now disclaims any reliance on those allegations. See Opp. at 21:7-9.
38
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
blood test, he lacked a “check to verify safety” for a span of 15 hours. ECF No. 241-41. When
2
plaintiff appealed the denials, CCHCS explained that “specialist providing consultation for your
3
care are not able to and has not issued orders” (sic), and that “[h]ealth care providers will continue
4
to confer with you and each other to provide appropriate medical care.” ECF No. 198, AGO 149.
5
Defendants contend that summary judgment is warranted because plaintiff had access to
6
blood sugar monitoring and Dr. Bright’s decision to deny bedtime insulin was medically
7
appropriate. Mot. at 16–17. For example, Dr. Bright explained that he denied the request for
8
bedtime fast-acting insulin because after receiving a dose, “the inmate may not have access to a
9
meal to eat . . . and might be forced to fast during the entire night.” ECF No. 238-4 ¶ 7. Likewise,
defendants’ expert Dr. Fitzgerald attested that “[t]he most dangerous time for hypoglycemia to
11
United States District Court
Northern District of California
10
occur is during sleep.” ECF No. 238-7 ¶ 26. In response, plaintiff asserts that the prison’s denial
12
was medically unacceptable. Opp. at 21. Plaintiff’s expert Dr. Koliwad suggested that Dr.
13
Kumar’s recommendation of a sliding scale dose of “bedtime insulin” was intended to “blunt”
14
high blood sugars when plaintiff’s levels were high. ECF No. 241-47 ¶ 70. Dr. Koliwad
15
concluded that sliding scale bedtime insulin was “medically necessary.” Id. Plaintiff, however,
16
has not identified facts suggesting that defendants rejected plaintiff’s request for bedtime insulin
17
on any other basis than their medical judgment. Dr. Koliwad’s conclusory statement that
18
defendants’ rejection was medically unacceptable does not itself create a genuine dispute of fact.
19
See Colwell, 763 F.3d at 1068 (“A difference of opinion . . . between medical professionals []
20
concerning what medical care is appropriate does not amount to deliberate indifference.”) (internal
21
citation omitted).
22
Plaintiff offers no other evidence that bedtime Regular insulin was medically necessary.
23
Moreover, Dr. Kumar—the very endocrinologist who recommended plaintiff receive bedtime
24
insulin—attested in a declaration that he “ha[d] no criticisms concerning the medical care that Dr.
25
Ahmed provided” plaintiff. ECF No. 238-9 ¶ 3. In light of that declaration, plaintiff has not
26
27
28
39
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
provided sufficient evidence to show that defendants’ decision to deny bedtime Regular insulin
2
was medically unacceptable. The Court’s conclusion requires granting defendants’ motion for
3
summary judgment on Counts 11 and 13, which both pertain to the defendants’ denial of sliding
4
scale bedtime Regular insulin.
As to Count 12, plaintiff contends that if defendants chose not to provide bedtime insulin,
5
at least a bedtime blood test was medically necessary so that plaintiff could check his glucose
7
levels and “eat a snack to avoid suffering from hypoglycemia while locked in [his] cell all night.”
8
Opp. at 22. Plaintiff further contends that defendants did not always permit him a bedtime blood
9
test. Id. Yet plaintiff had access to blood tests whenever he obtained an insulin injection. ECF
10
No. 238-4 ¶ 7. To the extent plaintiff claims he lacked blood sugar monitoring, the record thus
11
United States District Court
Northern District of California
6
contradicts that claim. Elsewhere in his opposition brief, plaintiff does not dispute that he had
12
access to blood sugar testing multiple times per day. See Opp. at 16. To the extent plaintiff
13
claims a bedtime blood sugar test was medically necessary, he has not identified record evidence
14
supporting that allegation. Plaintiff thus has not raised a factual material dispute for his claim for
15
deliberate indifference as to Count 12. See Toguchi, 391 F.3d at 1058 (summary judgment is
16
warranted unless plaintiff offers evidence to dispute whether defendants’ decision was “medically
17
unacceptable under the circumstances”).
Accordingly, the Court GRANTS defendants’ motion for summary judgment on Counts
18
19
11–13.
20
E. Qualified Immunity
21
Having concluded that genuine disputes of material fact preclude summary judgment on
22
deliberate indifference grounds on Counts 4 (against defendant Dr. Ahmed) and 8 (against
23
defendant Officer Lopez), the Court next considers whether those defendants are entitled to
24
qualified immunity.
25
26
27
28
Government officials are entitled to qualified immunity from suit if the officials did not
40
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
“violate clearly established statutory or constitutional rights of which a reasonable person would
2
have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). A right is clearly established if it
3
was “sufficiently clear that every reasonable official would have understood that what he is doing
4
violates that right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). Although case law need not be
5
directly on point, “existing precedent must have placed the statutory or constitutional question
6
beyond debate.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam).
7
Defendants do not raise specific arguments as to qualified immunity on Count 4. Globally,
8
defendants contend that “[a]s to each claim . . . it would not have been evident to a reasonable
9
official, under the circumstances, that Defendants were deliberately indifferent to [plaintiff’s]
medical needs.” Mot. at 24. On Count 8, defendants appear to argue that “it would not have been
11
United States District Court
Northern District of California
10
clear to a reasonable officer in . . . Lopez’s position that . . . suggesting that such an inmate eat a
12
snack, violated the inmate’s rights.” Id. However, in Lolli, which was decided more than a
13
decade before the events involved in this case, the Ninth Circuit concluded that the “urgency of
14
[plaintiff’s] protestations about his diabetes and his need for food” put custody officers on notice
15
of the inmate’s risk of harm. 351 F.3d at 421. As plaintiff tells it, he informed Officer Lopez that
16
he needed to eat after his insulin injection, but she just “laughed and smiled.” Lolli is thus a close
17
match for this case, if the facts are as plaintiff says. Accordingly, genuine disputes of material fact
18
preclude a grant of qualified immunity on Count 8.
19
Although Defendant Dr. Ahmed does not raise any specific argument about qualified
20
immunity on Count 4, the gravamen of defendants’ argument is that because “[plaintiff] has,
21
among other things, been seen regularly by licensed medical providers and received blood sugar
22
testing and insulin in accordance with the judgment of his physicians,” medical staff are entitled to
23
qualified immunity. See Reply at 15. However, Lolli placed beyond dispute that “a constitutional
24
violation may take place when the government does not respond to the legitimate medical needs of
25
a detainee whom it has reason to believe is diabetic.” 351 F.3d at 420. As explained above, there
26
27
28
41
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1
is a genuine factual dispute whether, based on plaintiff’s blood sugar levels, defendant Dr. Ahmed
2
was subjectively aware of plaintiff’s serious medical needs. That factual dispute also precludes a
3
grant of qualified immunity.
4
IV.
5
CONCLUSION
For the foregoing reasons, the Court GRANTS defendant Dr. Ahmed’s motion for leave to
6
file a second summary judgment motion, GRANTS plaintiff’s motion for leave to file a late
7
opposition to Dr. Ahmed’s motion for leave, DENIES defendants’ motion for judgment on the
8
pleadings, GRANTS defendants’ motion for summary judgment on Counts 1, 3, 5–7, 9, and 11–
9
13, GRANTS defendants’ Ellis and Warden Spearman’s motion for summary judgment on Count
4, DENIES defendant Dr. Ahmed’s motion for summary judgment on Count 4, and DENIES
11
United States District Court
Northern District of California
10
defendant Officer Lopez’s motion for summary judgment on Count 8.
12
IT IS SO ORDERED.
13
Dated: September 18, 2018
14
15
______________________________________
LUCY H. KOH
United States District Judge
16
17
18
19
20
21
22
23
24
25
26
27
28
42
Case No. 15-CV-01769-LHK
ORDER GRANTING DEFENDANT AHMED’S MOTION FOR LEAVE TO FILE A SECOND SUMMARY
JUDGMENT MOTION; GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE OPPOSITION TO
DEFENDANT AHMED’S MOTION FOR LEAVE; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
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